Arizona weekly enterprise., 1887-12-03
AN IMPORTANT DECISION.
What the Law is im Arizona Rel ;.tiVe to Certain Legal Prob
 lem Pertaining to Irrigation.
(EOof and Horn l

rem h-ertHhhIHS tO ArfISatIOM.
 (Hoof and Horn)
 Below is published the descisiou of the supreme court, rendered Ill the case of Dalton ct al. vs. Rentaria ct al, Sep tember 20, 1887, on appeal from Pima county. The opinion was rendered by Chief Justice Wright being concurred ill by the entire bench of the Supreme Court, and as 1t must be accepted as the law of the Territory until set aside by the supreme court of the United States, it is of immense importance that every man ill the slightest degree interested in complex propositions affecting the use and distribution of water ill the Terri tory should make himself thoroughly ac- ouainted with the muchly controverted questions 1t has at least for the present set at rest, especially ill the case where the original locators may have in per hitting others to make Improvements in good faith and then endeavor to su bse- quently deny them the right of using the water to which claim has been thus es- abolished. The decision delivered by Judge Wright is able and exhaustive, covering as will be seen, many important points, It Is as follows:
 Plaintiff brought this suit in the county court of Pima county, in March, 1885, to restrain the defendants iron, preventing the waters of the Santa Cruz rlver from flowing through certain acequias, whereby said waters were con- ducted upon plaintiffs land. After averr- ing that said lands had been owned and cultivated by plaintiffs, or those under whom they claim, for & period of time ranging from 16 to 50 years, the com plaint then among other things, alleges 'sthat during all the time herein men, toned said lands have been irrigated from the wat CTS of the Santa Cruz river, from one main acequia, and distributed by others, which are kept Tn common repair for the use of all, below one and one half miles above said Silver lake, in pro- portion to the lands respectively cnlti- vated. That for more than sixteen years these plaintiffs, their grantor and lessors have contributed their respective pro- portion of labor and expense in main taining all of said aceenias, tor irrigating said lands, equally with defendants, and all others below said point. That said lands are agricultural, capable of raising valuable crops; but without irrigation no crops can be raised, and those now grow ing will perish, and plaintiffs lose the labor performed, seed sown, and ex- penses incurred attending the same. The defendants refuse to permit these plain titls to use any of the water of the Santa Cruz river to irrigate their respective lands. That said defendants, although requested to permit said water to flow through said @cequias upon the plain liffs' lands, as plaintiffs were entitled to have them do, and as has always been heretofore permitted, disregarding said right. since the thirteenth day of March, 1885, have unlawfully prevented the use of said waters, and threaten to so continue to wholly deprive plaintiffs of the enjoyment thereof. "
 "The- answer denies and traverses the allegation of the complaint, except that it admits that lots 13 and IA in section 10, and 23 and A in 13, and the south 10 acres in section II, had been occupied for % years, and the said answer further admits that the greater part of plaintiffs land as described in the complaint had been cultivated for sixteen years. These admissions on the record are significant, and evoke serious reflection. If the greater part of the plaintiffs land has been cultivated for the last Is years, it was done without defendants consent
 If without their consent, have they not been of laches, unreasonable delay, and inexcusable neglect in waiting l6 years without taking any steps to restrain the wrongful act of the plaintiffs? If the defendants were fairly put on their guard; if they had actual knowledge that plaintiffs were diverting waters that be- longed to defendants by virtue of prior appropriation; if they stood by for 16 years or more, and saw the plaintiffs build their houses, open out their lands and put them in cultivation, expend their money in the improvement of these homes, pay their portion of the expense and bear their proportion of the labor ill building and repairing the acequias, and otherwise do and perform such acts as indicated that plaintiffs believed they had equal rights wit h defendants to the waters of the Santa Cruz, do not all these cir cumstances serve to imply that defend ants waived or abandoned any exclusive prior right to said water? At least was there not such unreasonable delay as that til ey are now precluded from complaining? Will parties be permitted to stand by for l6 years or more, and see new fields put ln cultivation, irrigated, forsooth, with water to which they have an exclusive prior right, see large sums expended in erecting new homes, and witness new and important interests intervene, and then be heard to complaint A fortiori, de- fendants will not be heard to complain if these things were done with their con sent. Indeed, our opinion is, in this case, that acquiscence, non active, on the part of the defendants, for so long time, gave consent. They could not consent ''till rights vested, and then dissent" Sc that it is really immaterial whether the irrigation was done with or without de- fendants' consent, if they stood passively by-see Smith V. Hamil , 20 Mich. 4 Parke V. Kilham, 8 Cal. 76; Joyce V. Williams, 26 Mich. 332.
 In the case of Neven V. Belnap, : Johns 573, Judge Thompson held that silence worked an estopped. In deliver ing the opinion of the court he says
 Though it does not appear pos sitively from the evidence that Belnap took any active agency in this negotiation, yet his presence and silence are equally efficacioui and binding upon him, if the complainant was thereby misled and deceived. There